St Andrews Law Journal最新文献

{"title":"The Post-Brexit Need for a Data Adequacy Decision to Engage in Mutual Assistance in Criminal Matters with the EU","authors":"Matthew Bruce","doi":"10.15664/stalj.v3i1.2646","DOIUrl":"https://doi.org/10.15664/stalj.v3i1.2646","url":null,"abstract":"There is a need for the UK and EU to continue mutual assistance in criminal matters. As a Member State, Mutual assistance in criminal matters between was primarily governed by an EU convention. This convention builds on existing Council of Europe (CoE) conventions on mutual criminal assistance. The EU convention states that mutual assistance shall be afforded in proceedings brought by member states’ authorities, or in connection with proceedings where a person may be liable in the requesting member state. Title II provides a framework for specific forms of assistance including restitution, hearings via videoconference and covert investigations. Member states are free to conclude further bilateral arrangements. A key element of this mutual assistance is harmonised EU data protection laws. With the UK now outside the EU’s data protection architecture, this may pose a significant hurdle for future cooperation. This article critically analyses the need for a data adequacy decision from the EU for the UK to engage in mutual assistance in criminal matters post-Brexit. To reach a conclusion, the article is set out over three substantive areas considering: mutual assistance and data protection law as it applies to EU member states; the law underpinning adequacy decisions; and future legal developments post-Brexit. Specific examples of data transfers and the effect of the Trade and Cooperation Agreement (TCA) are compared and contrasted to adequacy decisions. While provisions of the TCA and EU Law Enforcement Directive (LED) provide some assurances, the article recommends that a data adequacy decision made under the LED is pursued.","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124856755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why Rape Law Revisions should be Consistent with Anderson’s Negotiation Model","authors":"Emma Jervis","doi":"10.15664/stalj.v3i1.2648","DOIUrl":"https://doi.org/10.15664/stalj.v3i1.2648","url":null,"abstract":"In this essay I argue that the current law structure unobjectionably fails to protect women against cases of rape and needs reform. I further maintain that Anderson’s suggestion of ‘negotiation consent’ is the most appropriate line of reform, and I will defend her proposal in the face of potential objections. The current rape law in the UK was implemented in 2003, which revised previous laws firstly defined in the Sexual Offenses Act of 1953. Despite the ostensibly ‘objective’ nature of this law, which will be further examined in this essay, many feminist philosophers have noted the biases within the law which favour male interests. This essay explores the present issues within UK law, as well as our current understandings of what constitutes ‘a reasonable belief of consent’, that fail to protect women in instances of rape. This foundational attitude towards such matters influence performative revision models, such as the No Model and the Yes model, which I consider within this essay. Yet the inadequacies of such approaches, as I demonstrate, mirror some of the current issues with rape law in the UK today; such as the lack of recognition of men’s frequent inability to interpret women’s nonverbal behaviour and disregard for instances where one person changes their mind. \u0000Furthermore, I advocate for Anderson’s proposal of the negotiation model as an alternative reform of the law as well as society’s attitude towards sex and how consent can be clearly obtained. This model, when legally applied, will not only legally protect women in cases of rape, but eventually protect them from the present societal norms that perpetuate the imminent risk of rape and sexual exploitation. \u0000 Through making the act of negotiation a legal requirement, I maintain that there would be a ‘ripple effect’ throughout society that would, eventually, lead to a change in public expectations of men and women. \u0000Anderson’s emphasis on either party being able to initiate the negotiation establishes a much more open-minded attitude towards gender roles and expectations of individuals based on their gender. This is the greatest strength of Anderson’s argument, as this equality-driven initiative would eventually seep into society’s wider expectations of individuals when initiating sex, and create a world where understanding what the other person is anticipating in a sexual situation is the norm.","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114069115","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Post-Brexit Recognition and Enforcement of Judgements: Problems and Solutions","authors":"Matthew Bruce","doi":"10.15664/stalj.v3i1.2649","DOIUrl":"https://doi.org/10.15664/stalj.v3i1.2649","url":null,"abstract":"There is a need for the UK and EU to continue mutual assistance in criminal matters. As a Member State, mutual assistance in criminal matters between the UK and EU was primarily governed by an EU convention. This convention builds on existing Council of Europe conventions on mutual criminal assistance. With the UK now outside the EU’s data protection architecture, this may pose a significant hurdle for future cooperation. This article critically analyses the need for a data adequacy decision from the EU for the UK to engage in mutual assistance in criminal matters post-Brexit. To reach a conclusion, the article is set out over three substantive areas considering: mutual assistance and data protection law as it applies to EU Member States; the law underpinning adequacy decisions; and future legal developments post-Brexit. Specific examples of data transfers and the effect of the Trade and Cooperation Agreement are compared and contrasted to adequacy decisions. While provisions of the Trade and Cooperation Agreement and EU Law Enforcement Directive provide some assurances, the article recommends that a data adequacy decision made under the Directive is pursued.","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"262 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120864573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State Prevention Targeting Persons Attracted to Minors in Europe","authors":"Aleydis Nissen","doi":"10.15664/stalj.v3i1.2647","DOIUrl":"https://doi.org/10.15664/stalj.v3i1.2647","url":null,"abstract":"More than a decade ago, innovative legal obligations were created in Europe to provide persons who fear that they might commit child sexual offences with access, where appropriate, to effective intervention programmes or measures designed to evaluate and prevent the risk of such offences. These supranational obligations were included in Article 7 of the Council of Europe’s Lanzarote Convention (2010) and the near-identical Article 22 of the European Union’s Directive 2011/93 (2011). These provisions have the potential to prevent damaging children’s health, to help persons attracted to minors to lead more productive and fulfilling lives, and to save society substantial resources. The European Commission noted, however, in 2020 that out of all of the state action that needs to be undertaken to implement Directive 2011/93, the least progress has to date been made in relation to prevention programmes for persons attracted to minors who fear that they might offend or have offended. This article aims to review the supranational obligations and their implementation. It finds that the stigma around pedophilia hampers progress at individual, inter-personal, and structural levels. There is room for improvement in the cooperation between the European Union and the Council of Europe. In addition, specific programmes and measures for specific target groups, such as women or people with disabilities, are identified as a blind spot.","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"123 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128586825","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"AI Systems and Liability: An Assessment of the Applicability of Strict Liability & A Case for Limited Legal Personhood for AI","authors":"Louisa McDonald","doi":"10.15664/stalj.v3i1.2645","DOIUrl":"https://doi.org/10.15664/stalj.v3i1.2645","url":null,"abstract":"Recent advances in artificial intelligence (AI) and machine learning have prompted discussion about whether conventional liability laws can be applicable to AI systems which manifest a high degree of autonomy. Users and developers of such AI systems may meet neither the epistemic (sufficient degree of awareness of what is happening) nor control (control over the actions performed) conditions of personal responsibility for the actions of the system at hand, and therefore, conventional liability schemes may seem to be inapplicable[1]. \u0000The recently adopted AI Liability Directive [2022] has sought to adapt EU law to the challenges to conventional liability schemes posed by AI systems by imposing a system of strict, rather than fault-based liability, for AI systems. The goal of this is to be able to more easily hold developers, producers, and users of AI technologies accountable, requiring them to explain how AI systems were built and trained. The Directive aims to make it easier for people and companies harmed by AI systems to sue those responsible for the AI systems for damages. However, the Directive seems to ignore the potential injustice that could result from producers and developers being held accountable for actions caused by AI systems which they are neither aware of nor have sufficient control over. \u0000 In this essay, I will critically assess the Directive’s system of fault-based liability for AI systems and argue that, whilst such a system may confer some instrumental advantages on behalf of those suing for damages caused by AI systems, it risks causing injustice on the part of developers and producers by making them liable for events they could neither control nor predict. This is likely to risk both producing unjust outcomes and hindering progress in AI development. Instead, following Visa Kurki’s analysis of legal personhood as a cluster concept divided into passive and active incidents, I will argue that some AI systems ought to be granted a limited form of legal personhood, because they meet some of the relevant criteria for active legal personhood, such as the capacity to perform acts-in-the-law. The legal personhood I propose for AI systems is a kind of dependent legal personhood analogous to that granted to corporations. Such a form of legal personhood would not absolve developers and producers from liability for damages (where such liability is applicable), but at the same time, it would not risk unjustly holding producers and developers liable for actions of an AI system. \u0000[1] Mark Coeckelbergh, \"Artificial Intelligence, Responsibility Attribution, and a Relational Justification of Explainability.\" Science and Engineering Ethics, (2020): 2054 ","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130251127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Search of Mercian Law","authors":"T. Varé","doi":"10.15664/stalj.v2i1.2463","DOIUrl":"https://doi.org/10.15664/stalj.v2i1.2463","url":null,"abstract":"There are five extant English law codes from the sixth to the ninth century but, despite Mercia's having been an independent polity in the period, none are Mercian. Three seventh century Kentish royal law codes survive in a single twelfth century manuscript and two West-Saxon law codes survive elsewhere. The early English legal record is, therefore, thin and there are no extant law codes from the major Anglo-Saxon kingdoms of Northumbria, East Anglia, or Mercia. As such, this article discusses possible answers to two questions: what Mercian law was and whether a Mercian law code ever existed. \u0000  \u0000","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132703972","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Law of Treasure in England and Scotland","authors":"Zeb Micic","doi":"10.15664/stalj.v2i1.2461","DOIUrl":"https://doi.org/10.15664/stalj.v2i1.2461","url":null,"abstract":"This article explores the development of treasure law in England and Scotland, tracing its evolution since the time of Edward the Confessor to contemporary legislation and recent revisions. Literature on the subject is not extensive and treasure law has, at times, been ridiculed; as such, this article seeks to properly chronicle the development of this unique and intriguing area of both historic and contemporary law in England and Scotland.","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129375335","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Understanding the Relationship between Canadian Law and Settler-Colonial Land Ontologies for Contemporary Decolonisation Movements","authors":"Marisa Turner","doi":"10.15664/stalj.v2i1.2465","DOIUrl":"https://doi.org/10.15664/stalj.v2i1.2465","url":null,"abstract":"This article uses a decolonial framework to reveal the power of legality in the settler-colonial states’ legitimation of ontological occupation. Using the 1997 Delgamuukw decision and the Coastal GasLink Pipeline as central case studies, this paper reveals that the historical interrelationship between settler-colonial land ontologies and Canadian law during the process of colonisation has influenced the Canadian court system in ways that limit possibilities for decolonisation, and recognition of Indigenous sovereignty. ","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131423051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trading with the Enemy in the Great War","authors":"R. Shiels","doi":"10.15664/stalj.v2i1.2464","DOIUrl":"https://doi.org/10.15664/stalj.v2i1.2464","url":null,"abstract":"This article considers the delicate circumstances arising from the outbreak of the Great War and existing trade at the immediate date of the declaration of war. The decision to prosecute, or not to prosecute, for criminal charges is never easy but it is all the more problematic and sensitive when the immediate context is national high politics. \u0000","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"145 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123479463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"After the Flight","authors":"Katherine Montana","doi":"10.15664/stalj.v2i1.2460","DOIUrl":"https://doi.org/10.15664/stalj.v2i1.2460","url":null,"abstract":"Following the deposition of Mary, Queen of Scots in 1567, she fled first to Lochleven and, following defeat by supporters of James VI, she fled south to England seeking refuge. In England, Queen Elizabeth I allowed for conferences at York and Westminster to consider Mary's involvement in the murder of her husband Henry Darnley. This article explores the contemporary legality of such conferences, and whether they might be regarded as trials.","PeriodicalId":292385,"journal":{"name":"St Andrews Law Journal","volume":"109 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114407806","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}